Finally a local reason to post an item by one of my favorite national bloggers, Glenn Greenwald. As he explains here, a recent essay of his drew a critical response from Chapman University’s John Eastman, unsuccessful Republican attorney general candidate, teabagging favorite, and evidently a great fan of Bush’s and Obama’s ongoing war on Americans’ privacy. Here’s Glenn…

Earlier this month, The Cato Institute’s Unbound published my essay on America’s Surveillance State, and then invited several commentators to reply and participate in a debate of these issues. Two of those replies were particularly critical: this one from John Eastman, former Dean of the Chapman University School of Law (recent home to John Yoo), recently defeated GOP candidate for California Attorney General, and former clerk to right-wing judges Clarence Thomas and Michael Luttig; and this one from Paul Rosenzweig, a Fellow at the Heritage Foundation and a former Homeland Security official in the Bush administration.

My reply to them is now posted. As I noted, those two responses “perfectly illustrate the continuous stream of manipulative fear-mongering over the last decade which has reduced much of the American citizenry into a meek and submissive faction for whom no asserted government power is too extreme, provided the scary menace of ‘Terrorism’ is uttered to justify it.” For that reason, I think the discussion is quite instructive.

* * * * *

THE SURVEILLANCE STATE THRIVES ON FEAR.

“Glennzilla”

I’m particularly appreciative of the responses to my initial essay by John Eastman and Paul Rosenzweig. Those two replies — especially the former — perfectly illustrate the continuous stream of manipulative fear-mongering over the last decade which has reduced much of the American citizenry into a meek and submissive faction for whom no asserted government power is too extreme, provided the scary menace of “Terrorism” is uttered to justify it.

That more-surveillance-is-always-better mentality is what allows Eastman and Rosenzweig to dismiss concerns over surveillance excesses a mere four weeks after the establishment-supporting Washington Post documented that our Surveillance State is “so large, so unwieldy and so secretive” that not even top intelligence and defense officials know what it does. For those who are so fearful of Terrorism and/or so authoritarian in their desire to exploit and exaggerate that threat for greater government power, not even the construction of a “Top Secret America” — “an alternative geography of the United States” that operates in the dark and with virtually no oversight — is cause for concern.

Chapman’s John Eastman, apologist for the surveillance state.

Eastman’s essay centers around one three-word slogan: We‘re at war! For almost a full decade, this has been the all-justifying cliché for everything the U.S. Government does — from torture, renditions and due-process-free imprisonments to wars of aggression, occupations, assassination programs aimed at U.S. citizens and illegal domestic eavesdropping. Thus does Eastman thunder, with the melodrama and hysteria typical of this scare tactic: “Not once in his article does Greenwald even acknowledge that we are at war with a global enemy bent on destroying us.” A global enemy bent on destroying us! Scary: be very afraid.

By invoking The War Justification for America’s Surveillance State, Eastman wants to trigger images of America’s past glorious wars. He’s not particularly subtle about that, as he begins with a charming story of how his grandfather’s letters were censored during World War I (how censorship of a soldier deployed in a foreign war justifies surveillance of American civilians on U.S. soil is anyone’s guess). But, for several reasons, this war justification is as misleading as it is dangerous:

First, unlike for past wars (such as World War I), the current “war” has no possibility of any finite duration or definitive end. Even its most enthusiastic proponents — as well as the U.S. Government — acknowledge that it is more akin to an ideological conflict (like the Cold War) than a traditional combat war. Islamic extremism is highly unlikely to end in the foreseeable future, to put it mildly. Thus, this “war” will drag on not for years but for decades, probably even generations. When President Obama unveiled his proposal for “preventive detention” last June, he said that “unlike the Civil War or World War II, we can’t count on a surrender ceremony to bring this journey to an end” and that we’ll still be fighting this “war” “a year from now, five years from now, and — in all probability — 10 years from now.”

Thus, people like Eastman who want to radically expand government power in the name of this “war” are not defending temporary alterations to the American political system. Rather, they are urging its permanent transformation. We are, as the military historian Andrew Bacevich has repeatedly documented, a nation in a state of “perpetual war.” War-justified powers will be vested in the government not — as people like Eastman imply — temporarily, but rather forever.

Second, Eastman’s fear-inducing, glorifying description of a handful of Muslim extremists — “a global enemy bent on destroying us” — is so hyperbolic as to be laughable. Earlier this month, the State Department published its annual Report on Terrorism. Among its findings, as highlighted by McClatchy’s Warren Strobel, was this: “There were just 25 U.S. noncombatant fatalities from terrorism worldwide. (The US government definition of terrorism excludes attacks on U.S. military personnel). While we don’t have the figures at hand, undoubtedly more American citizens died overseas from traffic accidents or intestinal illnesses than from terrorism.”

Eastman wants to drastically expand the power of the American Government and subject U.S. citizens to sprawling, unaccountable surveillance, all because he’s petrified of a handful of extremists hiding in caves who cause fewer deaths to Americans than stomach diseases (or, at least he wants Americans to be that petrified). That’s how America has become a nation racked with fear. Compare that mentality to what the U.S. did in the face of an actually threatening “global enemy”: the Soviet Union, which possessed a huge army and hundreds of nuclear-tipped intercontinental ballistic missiles aimed at U.S. cities.

Even at the height of the Cold War, the U.S. enacted the FISA statute, which criminalized government eavesdropping on American citizens without warrants. Every President until George W. Bush — including Ronald Reagan — was able to keep the country safe while adhering to that surveillance safeguard. But while even the most hawkish Americans in the 1980s — facing the Soviet threat — understood that domestic eavesdropping should be conducted only with judicial warrants, the war cheerleaders of the current decade insist that the far less formidable threat from Muslim extremists means we must vest the Government with the power of warrantless surveillance — even on American citizens, on U.S. soil. That’s how far we’ve descended into the pit of fear-mongering and submission, thanks to the toxic mix of fear-mongers and the authoritarian cowards they exploit.

Third, there’s no “war exception” in the Constitution. Even with real wars — i.e., those involving combat between opposing armies — the Constitution actually continues to constrain what government officials can do, most stringently as it concerns U.S. citizens. But strictly speaking, we’re not really “at war,” as Congress has merely authorized the use of military force but has not formally or Constitutionally declared war. Even the Bush administration conceded that this is a vital difference when it comes to legal rights. In 2006, the Bush DOJ insisted that the wartime provision of FISA — allowing the Government to eavesdrop for up to 15 days without a warrant — didn’t apply because Congress only enacted an AUMF, not a declaration of war (emphasis added):

The contrary interpretation of section 111 also ignores the important differences between a formal declaration of war and a resolution such as the AUMF. As a historical matter, a formal declaration of war was no longer than a sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act.

The Bush DOJ went on to explain that declarations of war trigger a whole variety of legal effects (such as terminating diplomatic relations and abrogating or suspending treaty obligations) which AUMFs do not trigger (see p. 27). To authorize military force is not to declare war.

Indeed, the U.S. is fighting numerous undeclared wars, including ones involving military action — such as the “War on Drugs.” Given that our “War on Drugs” continues to rage, should the U.S. Government be able to eavesdrop on accused “drug kingpins” or associates without warrants? After all, Terrorists blow up airplanes but Drug Kingpins kill our kids!!! The mindset that cheers for unlimited Presidential powers in the name of “war” invariably leads to exactly these sorts of expansions.

The U.S., from its Founding, has been grounded in the need to balance security with freedom; that means sometimes sacrificing the former for the latter (which is why, for instance, the Constitution limits the State’s power to conduct searches or imprison people even though those limits will sometimes enable violent criminals to escape). People like Eastman evince no appreciation for that balance. Security is the only recognized value, and thus, like a frightened child calling out for a parent, they insist that the Government must have unrestrained power to do what it wants to Keep Us Safe. A country wallowing in that level of blinding fear will not be great for very long.

Rosenzweig’s reply is much more substantive and reasonable, and I’ll leave it to readers to compare on their own our competing claims about the nature of the surveillance abuses and the lack of oversight and safeguards. I do, however, want to flag one component of his response as illustrative of the erosion of liberty which the U.S. continues to suffer and the way in which it has been normalized.

It was quite common during the “debate” over America’s torture regime for Bush defenders to resort to the defense that even if we engaged in harsh or even illegal tactics, they paled in comparison to, say, the torture techniques employed by Saddam Hussein. It’s not like we have rape rooms and mass graves, they’d argue (leave aside the fact that mass graves, at least figuratively, are exactly what we’re leaving behind in Iraq, among other places). Our descent into brutality and lawlessness was epitomized by the fact that this became our new standard: as long as we’re not as bad as history‘s most despicable monsters, there’s nothing to complain about.

Rosenzweig’s dismissals of America’s Surveillance State abuses is redolent of that severe bar-lowering. He pronounces, as though it’s comforting: “Whatever one may say about the United States, our system is far more protective of civil liberties and privacy than, say, China or Russia or any of a dozen other readily-named nations.” The U.S. once proclaimed itself “the Land of the Free” and our President “Leader of the Free World.” We’re now reduced to this sloganeering boast: Not as Tyrannical as Communist Regimes!

Is it really a comfort to anyone that the American Surveillance State is not as invasive or out-of-control as Russia’s and “a dozen other nations”? Moreover, that premise is highly debatable. As I noted in my initial essay, quoting The Washington Post: “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.”

And consider this 2007 chart from Privacy International, a group that monitors the surveillance policies of nations around the world. Each color represents the level of the nation’s privacy and surveillance policies, with black being the most invasive and abusive (“Endemic Surveillance Societies”) and blue being the least (“Consistently upholds human rights standards”) – click on image to enlarge:

Note that this chart is consistent with Rosenzweig’s “defense” of the American Surveillance State that “our system is far more protective of civil liberties and privacy than, say, China or Russia or any of a dozen other readily-named nations.” For a society claiming to be devoted to principles of individual liberty and restrained government power, is that supposed to be some sort of comfort that we do not, in fact, now live under an out-of-control, increasingly entrenched and inherently abusive Surveillance State?

15 Comments

Glenn Greenwald should be required reading for anyone who claims to be a Constitutionalist or a civil libertarian. I pretty much read his stuff along with the only Fox analyst (and one of two true libertarians on their staff) I can stomach, Judge Andrew Napolitano, if I want the lowdown on Constitutional and civil liberties issues. Even the Judge was slamming the Bush era surveillance state on Fox back in those dreadful days.

Glenn’s stuff is so thoughtful and in-depth. I enjoy the hell out of it, but I’m afraid most Americans don’t want to take the time and instead just ask for the sound bites. The simplistic talking points.

What’s really ironic to me about this whole topic though is that these proponents of the surveillance state are generally the same people screaming about the need for smaller government. It just doesn’t make sense.

He highlights what is a typical REACTIONARY response – the Use of FEAR-MONGERING, and creating ANXIETY to justify eroding our Constitutional Protections and our American Values…this is the same as is done with other issues:

1) Fear the gays or LGBTs – Gays/LGBTs are destroying straight marriages.
2) Fear the undocumented immigrants – they are destroying our economy.
3) Fear the “anchor babies” – change the Constitution and violate a cornerstone of citizenship
4) Fear the Muslims – they are taking over America, so deny them their rights
5) Fear the Latinos/Hispanic/Mexicans – “their” values are destroying America
6) Fear the Socialistic, Muslim, Godless, Kenyan “born” President Obama – and hope he fails, AND Let’s take back America, and “Restore the Honor” with a Glenn Beck Generic God.

U cannot destroy straight marriage, you can just make it seem a little less relevant if john and mike go down the isle! What is the point of marriage if any tom dick or harry (no pun intended) can do it?

“Fear the undocumented immigrants – they are destroying our economy.”

MQ says:

We do not fear illegal immigrants! Its just really frustrating to pay for child care as an American citizen mean while paying for Maria’s kids to go free!
We don’t fear illegal immigrants we just don’t want to pay your non-profit to house them, while trying to save for a house ourselves!

“Fear the “anchor babies” – change the Constitution and violate a cornerstone of citizenship”

MQ says;

We don’t fear children we just don’t want to pay for their parents to have them from: giving birth, educating and healthcare…. No, I would rather spend my money on sending my own kids to college or my favorite charity!

” Fear the Muslims – they are taking over America, so deny them their rights”

MQ says:

This one does my head in! When the muslims stop hanging, stoning and blowing up people, then I think a community center would be a little more appropriate in an area next to the place that 3,000 people lost their lives in the name of Islam!

The last time I checked the Mexicans/hispanics/latinos where flocking into this country. I think since we are the host country, then the quests need to learn OUR values first!
In this country we value self reliance and education!

President Obama –

MQ says:

We did not want him to fail us but he did!

And MR. F your distain for God and man is showing. God has no generic and nor does man!

What Glenn Beck is advocating is getting back to the founding values that made this country great…The love of God, country and the right for all men do right their full potential!

The love of God is not a founding value of this country. Read a little history and you’ll find that this country has always been secular. The founders knew of this diversity and rightly prohibited the government from endorsing/promoting/establishing any one religion. The use of the word “God” on a coin does not imply the God of Christians versus the God worshiped by Jews or Muslims.

Just by way of reminder, Jews and Muslims worship the very same God you do. But we all know that when you say “God”, you mean the Christian faith and no other. So yes, you fear religious diversity, among other things.

NO, I am sorry I think it is you who needs to read your history. I suggest a book called “Founding Brothers” Joseph . J Ellis.

The constant criticism I have gotten regarding my written and spelling skills. I have made an effort to read more. I have been reading all about the birth of this nation and it is very, very interesting.

As far as the Separation of church and state is concerned. Clearly it says church and not God! Equal treatment of all churches and no one church being dominant.

In this country there are many faiths, but the fact is, this is a christian nation, founded on christian beliefs. It is the separation of a church and state, not God and state!

Words are very powerful and chosen very carefully!

As far as fearing religious diversity, maybe it would be a good thing not only in Northern Ireland but in Saudi Arabia.

You are so ignorant about the world and how truly great your country and country men are!

Religious diversity in Saudi Arabia would indeed be a good thing. But you don’t really care about religious diversity…you care about promoting the Christian faith. So spare us the faux concern about Saudi Arabia.

Oh, and I have read Mr. Ellis’ book. Nothing in his book negates the simple fact that this has always been a secular nation. Christianity dominant? Yes…but always secular, and religiously diverse. And increasingly so. I know…change is scary.

What you fear is that religious diversity is growing. You want Christianity to be a dominant religion. And you’re not opposed to that view being sanctioned by the government. You’re not opposed to politicians using political power to promote that viewpoint.

“Religious diversity in Saudi Arabia would indeed be a good thing. But you don’t really care about religious diversity…you care about promoting the Christian faith. So spare us the faux concern about Saudi Arabia.”

MQ says:

My Father was murdered because he was a Catholic leaving my mother with 5 young children. I do indeed care!

I believe in God I did not say I believed in any one religion!

The truth is that some religious beliefs can be very dangerous. Like the belief that you can kill your wife by burning her… Not a good thing!

I am not a fan of the muslim religion, only because it does not seem to be a fan of my gender or the fact that I might tell a cleric to go F#$* himself if he imposed his will on me!

Everyman for himself I suppose!

I am more into keep your shit out of my face and I will keep my shit out of yours!

The more providential jeffersonian version of the story triumphed in the history books, as Adams knew it helped along by one final act of faith that everyone then and now regarded as the unmistakable voice of God!

Why can’t you just be intellectually honest and admit that this is all about promoting the Christian faith, and not just “God”. Why the backpedaling? Just say it. You want the Christian faith in this country to remain dominant. I have that right, right?

And as for the Ellis passage you quote…Really? Adams blurting out (incorrectly) that “Thomas Jefferson still lives” and the two great founders coincidental same day deaths are viewed by “everyone” as the voice of God? Everyone? Really?

LOL… You have not met me, and don’t know my history…. But I have been known to throw a view black board dusters at nun’s….God loves me I know that but priest’s and Rev’s not so much. I do go to Mass, because I do think religion was not only good for me growing-up (guilt trip) but can be a strong guiding light in all kids lives. I just think with some religion the guiding light has become a force to manipulate!

Whether you are muslim, christian or a jew all faiths should be guided by one simple fact…. Life is sacred, until proven otherwise!

This country whether you like it or not was founded on christian beliefs and the majority of the people who live in this country are christian. I would rather live in a christian country any day than be oppressed in a muslim one!

But feel free to convert to Islam and pray to mecca. Just don’t expect me to think it is normal to pray to a rock. I think priests not being able to marry in the Catholic faith is a little wacky too!

Yes, vern you could. Muslims have their rock and catholic’s have their cross. The problem is that you seem to favor the rock over the cross. Liberals cannot stand christians because they are the majority of this country. So even though the rock favoring group have been known to have blown up 3000 people in this country it does not matter. You’re reasoning is that the majority who died where most likely christians. More parking spots for the muslims!

I truly do not get your hatred for christians, while it is obvious too me why the muslim religion with all its female tenting and killing of innocents is a threat!

The christian religion moves in to the 21st century while the muslims move back in time. The video that i was sent to day of the young girl in Afganistan who was stoned to death because she was accused of having a relasionship with a young man was not only brutal but babaric!

Monkies with cell phones taping the event is what I saw! It is a common occurance in muslim countries where the dark ages is a live and well!